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N.J. should end spousal privilege entirely: Editorial

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"The marital communications privilege is meant to encourage marital harmony, not to protect the planning or commission of crimes," Chief Justice Stuart Rabner wrote in a 7-0 opinion. But why should married couples get any special treatment?
(Patti Sapone/The Star-Ledger)

It took several centuries, but better late than never: The old-fashioned privacy rights that shield married couples plotting crimes together may soon be a thing of the past.

This week, our state Supreme Court unanimously agreed that it’s time to update New Jersey’s law protecting spouses from having to reveal their communications.

This is an important step in the right direction. But it still doesn’t go nearly far enough. The court recommends lawmakers revoke testimonial immunity only from spouses who team up to hatch or commit a crime together.

Yet what if only one of them is guilty, but the other knew and did nothing? Shouldn’t Tony Soprano’s wife have to testify against him, too?

Married couples rarely team up to plan or commit crimes; more common is the silent spouse who is a key witness. Defense lawyers argue that so-called “spousal privilege” is essential to preserving marital harmony. But is it really the responsibility of state prosecutors to tip-toe around wedded bliss?

Here’s what threatens marital harmony: The decision to commit a crime. And the truth of the matter is, spousal privilege wasn’t conceived with marital happiness in mind. This protection dates back to a much earlier era, when wives had no separate legal identity and their testimony was viewed as a form of self-incrimination by their husbands.

Once women gained legal rights, spousal privilege became a rule in search of a justification. That’s when the courts started getting starry-eyed about marital sanctity.

There is still plenty of reason to preserve legal privileges for professional relationships, such as those between psychiatrists and patients, priests and confessors and lawyers and clients. These people might not be able to carry out the fundamental duties of their jobs without privileged communications.

But since other close personal relationships don’t get special court protection, why should marriage? A blameless spouse who hears a confession is in the exact same situation as a blameless sibling, parent or child. People aren’t going to stop confiding in their spouses because marital privilege no longer exists; after all, we’ve seen no chilling effect on these other personal relationships. At least 19 other states have already done away with spousal privilege altogether, without toppling the institution of marriage.